Rule 45.8 Costs resulting from unnecessary or improper act, etc.I1

England and Wales

(1)

This rule applies where the court can order a party to pay another party’s costs incurred as a result of an unnecessary or improper act or omission by or on behalf of the first party.

(2)

In this rule, costs include costs met by legal aid.

(3)

The court may make an order—

(a)

on application by the party who incurred such costs; or

(b)

on its own initiative.

(4)

A party who wants the court to make an order must—

(a)

apply in writing as soon as practicable after becoming aware of the grounds for doing so, and in any event no later than the end of the case;

(b)

serve the application on—

(i)

the court officer (or, in the Court of Appeal, the Registrar), and

(ii)

each other party; and

(c)

in that application specify—

(i)

the party by whom costs should be paid,

(ii)

the relevant act or omission,

(iii)

the reasons why that act or omission meets the criteria for making an order,

(iv)

the amount claimed, and

(v)

those on whom the application has been served.

(5)

Where the court considers making an order on its own initiative, it must—

(a)

identify the party against whom it proposes making the order; and

(b)

specify—

(i)

the relevant act or omission,

(ii)

the reasons why that act or omission meets the criteria for making an order, and

(iii)

with the assistance of the party who incurred the costs, the amount involved.

(6)

A party who wants to oppose an order must—

(a)

make representations as soon as practicable; and

(b)

in reply to an application, serve representations on the applicant and on the court officer (or Registrar) not more than 5 business days after it was served.

(7)

If the court makes an order, it must assess the amount itself.

(8)

To help assess the amount, the court may direct an enquiry by—

(a)

the Lord Chancellor, where the assessment is by a magistrates’ court or by the Crown Court; or

(b)

the Registrar, where the assessment is by the Court of Appeal.

(9)

In deciding whether to direct such an enquiry, the court must have regard to all the circumstances including—

(a)

any agreement between the parties about the amount to be paid;

(b)

the amount likely to be allowed;

(c)

the delay and expense that may be incurred in the conduct of the enquiry; and

(d)

the particular complexity of the assessment, or the difficulty or novelty of any aspect of the assessment.

(10)

If the court directs such an enquiry—

(a)

paragraphs (3) to (8) inclusive of rule 45.11 (Assessment and re-assessment) apply as if that enquiry were an assessment under that rule (but rules 45.12 (Appeal to a costs judge) and 45.13 (Appeal to a High Court judge) do not apply);

(b)

the authority that carries out the enquiry must serve its conclusions on the court officer as soon as reasonably practicable after following that procedure; and

(c)

the court must then assess the amount to be paid.

[Note. See—

(a)

rule 45.2;

(b)

section 19(1) of the Prosecution of Offences Act 1985^f1 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986^f2; and

(c)

article 16 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008^f3.

Under section 19(1), (2) of the 1985 Act and regulation 3(1) of the 1986 Regulations, the court’s power to make a costs order to which this rule applies can only be exercised during the proceedings.

Under regulation 3(5) of the 1986 Regulations, if a magistrates’ court fines a defendant under 17, no costs order to which this rule applies may be for more than the fine.]

Annotations

Commencement

I1: Rule 45.8 in force at 6.10.2025, see Preamble

Footnotes

f1: 1985 c. 23.
f2: S.I. 1986/1335; regulation 3 was amended by regulations 2 and 3 of S.I. 2008/2448.
f3: S.I. 2008/1863.